Acting General Counsel Issues Report Summarizing Social Media Cases

Now that social media is more or less ubiquitious, labor professionals must be keenly aware of the complex issues that spring from the intersection of employee relations and social media. As readers of this blogknow, this is an area of the law that has gained a significant amount of attention over the last few months. As a nod to this development, and to summarize the dozen or so cases where the Acting General Counsel (AGC) has confronted social media issues, the AGC issued a report last Thursday to summarize the positions the AGC has taken.

The report (pdf) describes the facts of cases where the AGC has issued a complaint against an employer for an alleged violation of the NLRA. The report also describes cases where the AGC declined to issue a complaint. The conduct that has been the target of the AGC’s enforcement attention includes both employment actions against employees (terminations, for example) who have posted certain content on a social media platform as well as the employer’s policy language that regulates such employee conduct.

The report is quite lengthy, running in excess of 20 single-spaced pages. For labor professionals with the time, and a particular interest in this area of the law, reading the report may well be worth the investment. For everyone else, some of the employer conduct the AGC found to violate the law is summarized below:

· Terminating an employee who, among other things, referred to the owner of the company as “such an asshole.”

· Threatening to sue that same employee.

· Terminating an employee who, among other things, called her supervisor a “scumbag.”

· Terminating an employee for posting pictures of, and sarcastic comments about, the food and drink served by a luxury car dealership during the introduction of a new car model.

· Maintaining a policy that prohibited “rude and discourteous behavior.”

· Prohibiting “inappropriate discussions” between employees about the employer.

· Prohibiting employees from using the employer’s name, address, and other information in their personal profiles in social media sites.

On the other hand, some examples of employer conduct the AGC found not to violate the NLRA included:

· Terminating a bartender who posted a comment on Facebook about the employer’s tipping policy in response to an inquiry from a nonemployee. This employee also referred to customers as “rednecks” and indicated he hoped they choke on glass as they drove home drunk.

· Terminating an employee of a medical transportation company for posting comments on her U.S. Senator’s Facebook “wall” that disparaged the services her employer provided and disclosing information about a particular medical call to which the employer had responded.

· Disciplining a retail store employee who complained about “tyranny” from his store management, used a derogatory term to describe his assistant manager, and complained about being “chewed out” for mispriced or misplaced merchandise.

· Maintaining a policy that prohibited employees from pressuring their coworkers to “friend” or otherwise connect with them via social media.

Labor relations professionals should keep the following points in mind in light of the AGC’s report:

· First, remember that the AGC is responsible for enforcing the statute. The report summarizes conduct that the AGC believes violates the law. Not until the complaints make their way to the NLRB, however, will we know whether the NLRB will agree that there is a legal violation.

· Second, whether a violation exists is a very fact intensive question. Each employment action and each policy must be examined in context. The difference between legal and illegal employer conduct in this area can be difficult to identify.

· Third, what an employer’s policy says and how it could be read by a reasonable employee is critical. Care should be taken when drafting employment policies to avoid overly broad or ambiguous words and phrases.

· Finally, all of the AGC’s actions here rest upon the well-established right of employees to engage in protected, concerted activity. As the social media cases demonstrate, this rule can impact employee relations issues when an employer least expects it.

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